United States v. Kimmons

This
case was referred to the undersigned by the Hon. Lawrence J.
Vilardo, in accordance with 28 U.S.C. § 636(b)(1), for
all pretrial matters and to hear and report on dispositive
motions.

PRELIMINARY
STATEMENT

The
defendant, Oliver Kimmons (“the defendant”), is
charged with having violated Title 21 U.S.C. §§
846, 841(a)(1) and 856(a)(1). He is also charged with having
violated Title 18 U.S.C. §§ 1591(a) and 1591(b)(1).
Dkt. #37. He has filed an omnibus motion wherein he seeks:
(1) disclosure of grand jury minutes and exhibits; (2)
identity of informants; (3) preservation of rough notes of
law enforcement; (4) Rule 16 Fed. R. Crim. P. discovery; (5)
Brady, Giglio and Jencks materials; (6)
notice of the government's intent to offer evidence
pursuant to Rules 404(b), 608 and 609 of the F.R.E.; (7) a
bill of particulars; and (8) permission to file additional
motions. The defendant also moves to dismiss the superseding
indictment “for outrageous government conduct”
and suppression of evidence. Dkt. #s 25, 26 and 41.

The
government has filed its opposition to the requests of the
defendant. Dkt. #s 27 and 26, 46.

DISCUSSION
AND ANALYSIS

1.
The Defendant's Request for Disclosure of Grand Jury
Minutes

The
defendant has moved, pursuant to Rule 6(e)(3)(C)(I) of the
Federal Rules of Criminal Procedure “for the disclosure
of transcripts of all testimony before and all exhibits
considered by the grand jury that indicted” the
defendant. In support of this request, the defendant merely
asserts that he “has a particularized need for the
transcripts” because the defendant “is the
subject of a bare bones Indictment which does not state any
particular acts or overt acts that he allegedly committed in
the course of the alleged criminal activity. The
particularized need justifying disclosure is so that [the
defendant] is informed of what evidence actually exists
against him, and so he can intelligently make a decision as
to his course of action.”

It is a
long-established rule that “[t]he burden. . . is on the
defense to show that ‘a particularized need' exists
for the minutes [of the grand jury] which outweighs the
policy of secrecy.” Pittsburgh Plate Glass Co v.
United States, 360 U.S. 395, 400 (1959). The assertion
of the defendant as to her “particularized need”
is legally insufficient to require disclosure of the grand
jury proceedings as requested by her. It is pointed out that
transcripts of grand jury testimony of witnesses called by
the government to testify at trial must be made available to
the defendant pursuant to and in accordance with the
provision of 18 U.S.C. § 3500.

It is
also pointed out that:

[A]n indictment valid on its face is not subject to challenge
on the ground that the grand jury acted on the basis of
inadequate or incompetent evidence.

Furthermore, An indictment returned by a legally constituted
and unbiased grand jury, like an information drawn by the
prosecutor, if valid on its face, is enough to call for trial
of the charge on the merits. The Fifth Amendment requires
nothing more.

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